The Interstate Motor Lines, a partnership, paid under protest certain registration fees required by Sections 132 and 133 of Chapter 46, Laws of Utah 1935. They filed complaint for the return of those fees upon the ground, so far as argued in the briefs, that Section 133 was arbitrary and discriminatory as against them, thus violating the 14th amendment to the Constitution of the United States, U.S.C.A., and also Section 24, Article I, of the Constitution of Utah. This constitutional section provides that all laws of a general nature shall have uniform operation.
The Utah State Tax Commission, and its associate defendants, filed a demurrer to the Motor Lines' complaint. The demurrer was sustained and as plaintiff stood upon its complaint, the lower court dismissed the action. The Interstate Motor Lines appealed the case.
At the outset may it be said that we are not concerned with testimony of any kind in this case. If the complaint does not show upon its face an arbitrariness or discrimination in legislation, then the lower court's ruling must be sustained. The complaint does not allege facts peculiar 1 to the appellant and not applicable to others similarly situated; but alleges generally the nature of its business, and that it paid the fees required by the two sections mentioned. Appellant attacks the provisions of Section 133, thus the issue is whether or not those provisions are *Page 100 on their face unconstitutional. That is the issue raised by demurrer.
The two sections of Chapter 46, Laws of Utah 1935, read as follows:
"Article 11 Registration and License Fees
"Section 132. Registration Fees — Based on Weight.
"There shall be paid to the department for the registration of every motor vehicle, trailer and semitrailer, at the time application is made for registration:
"(a) A registration fee of $2.50 for the registration of every motorcycle.
"(b) A registration fee of $5 for the registration of every motor vehicle not designed, used, or maintained primarily for the transportation of passengers for hire, or for the transportation of property.
"(c) A registration fee for the registration of every motor vehicle, trailer, or semi-trailer, except vehicles propelled by electric power obtained by overhead trolley wires, designed, used or maintained primarily for the transportation of passengers for hire, or for the transportation of property, according to the following schedule:
"1. When such vehicle is equipped wholly with pneumatic tires:
On vehicles the gross weight of which is 5,000 pounds or less ..... $ 5"2. When such vehicle is not equipped wholly with pneumatic tires:On vehicles the gross weight of which is over 5,000 pounds but not more than 8,000 pounds ........................................ $ 15
On vehicles the gross weight of which is over 8,000 pounds but not more than 11,000 pounds ....................................... $ 25
On vehicles the gross weight of which is over 11,000 pounds but not more than 13,000 pounds ................................... $ 35
On vehicles the gross weight of which is over 13,000 pounds but not more than 15,000 pounds ................................... $ 50
On vehicles the gross weight of which is over 15,000 pounds but not more than 20,000 pounds ................................... $ 90
On vehicles the gross weight of which is over 20,000 pounds ....... $125
"For each such vehicle, fees according to the gross weight thereof, amounting to twice the fees set forth in subdivision 1 of this subsection.
"3. Small two wheeled trailers of 1,000 pounds capacity or less shall be exempt from registration.
"Section 133. Registration Fees Based on Licensed Gross Ton Miles.
"In addition to the registration fees imposed upon motor vehicles by section 132 of this act there shall be assessed and collected upon every motor vehicle, trailer or semitrailer, (except vehicles having a city franchise or license, while operating exclusively within the corporate *Page 101 limits of the city granting such franchise or license) designed, used or maintained primarily for the transportation of passengers for hire, or for the transportation of property, a registration fee, based upon the licensed gross ton miles of such vehicle, according to the following schedule:
"(a) For each such vehicle, the gross weight of which is over 13,000 pounds but not more 20,000 pounds, 0.70 mills per licensed gross ton mile.
"(b) For each such vehicle, the gross weight of which is over 20,000 pounds, 0.75 mills per licensed gross ton mile.
"(c) For each such vehicle propelled by motor, engine or other device using fuel other than motor fuel as that term is defined in chapter 12, title 57, Revised Statutes of Utah, 1933, a mileage tax of one and one-half cents per operating mile, in addition to the registration fee provided for in subsections (a) or (b) of this section.
"(d) In addition to the fee based upon the weight of the vehicle, the department shall collect, at the time of registration, a prepayment of the fee based upon the licensed gross ton miles, computed at the rates provided under this section, upon a basis of 4,000 operating miles, such prepayment to be applied in the payment of the registration fees covering the first 4,000 miles of operation of the vehicle after registration. Under regulations to be promulgated by the commission, such prepayment may be transferred from one vehicle to another owned by the same person. It shall be unlawful for any person to operate, or cause to be operated, any vehicle the gross weight of which is in excess of the gross weight for which such vehicle is registered.
"(e) The registration of any motor vehicle, trailer or semitrailer which is prohibited from operating upon the highways of this state by the provisions of sections 36-1-29 or 36-1-31, Revised Statutes of Utah, 1933, as amended by chapters 8 and 9, Laws of Utah, 1933, Second Special Session, shall not be construed as permission or license to operate such motor vehicle, trailer or semitrailer upon the highways of this state."
Appellants contend that there is no reasonable basis, considering the object of the legislation, for selecting 13,000 pounds as a dividing line for the levy of additional fees, nor for that matter, selecting 20,000 pounds as another dividing line. They raise the same objection to the additional fee required by paragraph (c) of section 133 above. Their attack upon this paragraph arises out of the fact that part *Page 102 of the fees they paid under protest were those charged appellants by reason of their use of Diesel fuel in their trucks.
In meeting the argument of appellants upon the requirements of paragraph (c), respondents have suggested that that paragraph may be upheld as an attempt by the Legislature to shift to the shoulders of those operating Diesel fuel vehicles (or more properly speaking, vehicles driven by fuel other than defined in Sec. 57-12-1, R.S.U. 1933) part of the burden borne by the operators of gasoline driven vehicles in the form of the gasoline tax required by Chapter 49, Laws of Utah 1935, which reads:
"Chapter 49
"Motor Fuels
"An Act Amending Section 57-12-5, Revised Statutes of Utah, 1933, Relating to the Tax on Gasoline and Exempting From Taxation Gasoline Sold or Used in Utah Which Is Manufactured or Distilled in Utah From Coals, Oil Shales, or Hydrocarbons of Utah by Low-Temperature Carbonization or Other Processes, for the Purpose of Developing Utah's Natural Resources and Providing New Utah-Owned Industries to Relieve Unemployment and to Reduce Amount of Money Leaving State.
"Section 1. Section Amended.
"Section 57-12-5, Revised Statutes of Utah, 1933, is hereby amended to read as follows:
"57-12-5. Tax on Motor Fuels — Exemptions.
"There is hereby levied and imposed an excise tax of four cents per gallon upon the sale or use of all motor fuels sold or used in this state, excepting such motor fuels sold or used in this state as have been manufactured by low-temperature carbonization or distillation within the state of Utah of coals, oil shales, or hydrocarbons of Utah, and excepting also such motor fuels as are or have been brought into this state and sold in original packages as purely interstate commerce sales. If any motor fuels have been purchased outside of this state and brought into this state in original packages or purchased within the state in original packages from a distributor for the use of the consumer, then such tax shall be imposed upon the use of such fuels. It is the purpose and intent of this chapter to impose and levy said tax upon the sale or use of motor fuels as defined in this chapter whether such fuels are used in motor vehicles or for other purposes, and by whomsoever sold or used, including municipalities, counties, school districts and every other arm or branch of the state government." *Page 103
We shall discuss this case in two parts. The first shall cover the requirements of paragraphs (a) and (b) of section 133, and the second, the requirements of paragraph (c) of that section. Before doing this, however, there are certain general matters which should be mentioned.
Under section 150, Chapter 46, Laws of Utah 1935, the funds received from the application of section 133 above, are distributed as follows:
"All fees received and collected under the provisions of this act shall be transmitted daily to the state treasurer.
"All fees paid for registration or transfer of registration of passenger cars and motorcycles and all fees based upon the gross weight of the vehicle shall be placed to the credit of a fund to be known as the motor vehicle registration fund. The necessary expense of administering the registration features of the act, including clerical services, stationary, stamps, number plates, blanks and books for receiving and recording registration, and the printing of directories and supplements thereto shall be a claim against the motor vehicle registration fund and when paid, shall be charged to said fund.
"Twenty per centum of the fees based upon the licensed gross ton miles, which are collected, shall be held by the state treasurer, one-half of which is to be used and expended by the state public utilities commission in the administration and supervision of common and contract motor carriers, and one half to be used and expended by the state tax commission in the administration of the gross ton mile provisions of the act.
"Five per centum of the fees based upon the licensed gross ton miles, which are collected shall be retained by the state treasurer as a reserve fund for the payment of refunds of such charges to which taxpayers shall be entitled under the provisions of this act. If at the end of any state fiscal year there is in the reserve fund herein provided a sum in excess of $25,000 the excess thereof shall be credited to the state road fund.
"The remaining seventy-five per centum of the fees based upon the licensed gross ton miles shall be placed to the credit of the state road funds and it shall become a part thereof.
"All other fees shall be placed to the credit of the motor vehicle control fund and said fund shall be used and expended by and under the direction of the department for issuing certificates of title, administering the antitheft provisions of the act, supervising dealers and wreckers, and making certified copies of the records of the department." *Page 104
Under section 57-12-9, R.S.U. 1933, the funds received from the application of Chapter 49, Laws of Utah 1935, are distributed as follows:
"57-12-9. Tax Payable Monthly — Distribution of Receipts.
"Said excise tax shall be due and payable by the distributor or retail dealer on or before the fifteenth day of each month to the state tax commission for all sales made and for each and every gallon of motor fuel used during the preceding month. The state tax commission shall receipt the distributor or retail dealer therefor and shall pay the same to the state treasurer promptly as collected. The state treasurer shall place one-half cent per gallon of the moneys so received in a special fund to be used for the maintenance and construction of secondary roads and those primary roads designated in chapter 6 of the Title Highways as, (56) and (61) to (71) inclusive; and shall place the remainder thereof to the credit of a fund for the payment of interest and sinking fund charges on state road bonds, until such fund shall contain an amount which added to any other funds available for the payment of interest and sinking fund charges on state road bonds will be sufficient to pay all interest and sinking fund charges on state road bonds which shall become due during the calendar year. The state treasurer shall credit the balance of the receipts from said excise tax during the remainder of the calendar year to the credit of the state highway construction and maintenance fund."
In Bleon v. Emery, Sheriff, 60 Utah 582, 209 P. 627, we held similar motor vehicle laws of 1917 to and including 1921, to be regulatory measures. Without comparing in detail the many sections of those laws with the many of our 2 present laws, it is sufficient to say that there is no reason for holding our present Chapter 46, Laws of Utah 1935, other than regulatory. The fact that certain measures therein are of a revenue nature does not change that regulatory character. InCamas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95, 25 A.L.R. 27, the court held that the object of a Law fixing a fee as compensation for the privilege of using the roads was the regulation of the motor vehicle for the public safety and the preservation of the highways of the state for the public welfare; that the fee was for regulation, including compensation, and was not a tax *Page 105 on property. The same principle is applicable to our own law, the compensation arising in the collection of fees for the state highway fund. It is just as much for the public safety and welfare that our roads are kept up, the sharp turns eliminated, the bad spots improved, as it is to check the speed of drivers, to protect the owner from loss of his car, or to do any one or more of the many things required by our motor vehicle laws.
In Crockett v. Salt Lake County, 72 Utah 337, 270 P. 142, 60 A.L.R. 867, we held our gasoline tax law of 1923, which, is practically the same as the section quoted above, a revenue measure. We held it to be a tax upon the 3, 4 privilege of selling motor vehicle fuels. The distribution of the funds from the 1923 laws was, for the purposes of this opinion, the same as that distribution in the present law. We do not wish to imply, however, that the distribution of the funds is the determinative factor in ascertaining the object of legislation. It is only one element, along with others, which may be considered.
We find these expressions in Vol. 1, 6th Ed., of Berry on the Law of Automobiles, page 95:
"But the better rule would seem to be that the disposition of the fee will not alone determine whether it is a license or a tax."
"That a license fee is called a tax and goes into the public treasury does not make it a tax."
"If upon investigation, the fee is found to be only sufficient to pay the expenses that may reasonably be presumed to arise in the supervision and regulation of the automobile licensed, its disposition should not have the effect of converting it into a tax."
Justice Reed in the case of New York Rapid Transit v. NewYork, 303 U.S. 573, 58 S. Ct. 721, 82 L. Ed. 1024, held that the ear-marking of funds was not necessarily indicative of the object of the legislation.
The two laws we have quoted above rather illustrate the effect of the distribution of the funds. In each case, funds collected go into the state road fund, after certain other deductions; but other factors in each distinguish them in *Page 106 their objective. However, we are not particularly concerned with those factors in this case. What we are concerned with is that we have decided that one law is a regulatory measure, the other a revenue measure.
Cooley on Taxation, Vol. 1, 4th Ed., pp. 719 and 720, para. 336, says:
"A particular classification may be valid if the object of the statute is to raise revenue, and invalid if the object is regulation. Classification may be proper for the purpose of fixing the amount of an occupation tax although it would be improper if one class was made subject to the tax and another class not subject thereto."
Again he says:
"In determining whether classification is reasonable regard must be had to the purpose for which the legislation is designed."
In Franchise Motor Freight Ass'n v. Seavey, 196 Cal. 77,235 P. 1000, 1002, it is expressed in this way:
"It is equally well settled that a statute makes an improper and unlawful discrimination if it confers particular privileges upon a class arbitrarily selected from a 5 larger number of persons, all of whom stand in the same relation to the privileges granted, and between whom and the persons not so favored no reasonable distinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other."
In Louis v. Boynton, D.C., 53 F.2d 471, 475, the same principle is expressed thus:
"* * * We are of the opinion that there is no rational basis for this classification bearing a reasonable and just relation to the objects of this legislation."
We must, then, in considering the validity of the terms of section 133 of our motor behicle laws, keep in mind the general principles quoted above, and that the object of the laws quoted are as set out.
One more thought, before entering upon the merits of this case. To justify the interposition of the authority of the *Page 107 state in enacting regulatory measures it must appear that the interests of the public generally, as distinguished from those of a particular class, require such interference. Regulations cannot be enacted to protect one class of 6 individuals against another, unless such interference is for the real protection of society in general. 6 R.C.L. pages 198, 199.
Now as to the requirements of paragraphs (a) and (b) of section 133. To properly interpret them we should consider also the requirements of section 132. The latter section, it will be noted, distinguishes between vehicles used for the transportation of passengers for hire or for the transportation of property, and others, principally pleasure vehicles or those used for family use. It distinguishes also between those using 7, 8 the highways and those using rails. Further it distinguishes between vehicles with pneumatic tires and those with solid tires. The family automobile pays the flat rate — the business vehicle a fee graded upon its weight, the greater the weight the higher the fee; and an extra fee for those not using pneumatic tires. It exempts trailers of 1000 pounds or less. It is self evident that the fees are charged according to the propensities of the vehicles to injure the highways — according to wear and tear upon the road. Pleasure vehicles, passenger cars, the family automobiles — call them what you wish — are treated alike. No distinction is made in their weight. We might say that the variations in their weight are not sufficient to justify a distinction. Possibly that is what the Legislature had in mind. They pay a flat rate. Hard tires pay more than pneumatic tires — they do more injury; heavy vehicles pay more than light vehicles, they do more injury to the roads. Two wheeled trailers of 1000 pounds do little or no harm, so are exempt. The theory of section 132 is logical. It applies to all of each class alike. The Legislature determines the lines of separation between classes. That is their prerogative, and the courts have no right to interfere on any theory that those lines were improperly *Page 108 placed — that the weights selected for a division into classes were not properly selected. Presumably the Legislature had the necessary information before it to justify such segregation into classes. It is obvious that the ground of difference between classes has a fair and substantial relation to the object of the legislation, that is, to regulation based upon the wear and tear to which the roads are subjected by the licensee. The cases are many upholding such a classification. People v. Deep Rock OilCorporation, 343 Ill. 388, 175 N.E. 572; Morf v. Bingaman,298 U.S. 407, 56 S. Ct. 756, 80 L. Ed. 1245; Ogilvie v.Hailey, 141 Tenn. 392, 210 S.W. 645; Raymond v. Holm,165 Minn. 215, 206 N.W. 166; McReavy v. Holm, 166 Minn. 22,206 N.W. 942; Wilson v. State, 143 Tenn. 55, 224 S.W. 168; Ard v. People, 66 Colo. 480, 182 P. 892; Kane v. Tilas,81 N.J.L. 594, 80 A. 453, L.R.A. 1917B, 553, Ann. Cas. 1912d 237; and Camas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95, 25 A.L.R. 27.
Now paragraphs (a) and (b) of section 133, are a continuation of the same principle. Presumably the Legislature had before it facts justifying the conclusion that vehicles of a weight of 13,000 pounds and more, and of 20,000 pounds and more, are exceptionally injurious to the highways, and 9, 10 therefore they should pay an additional license fee to compensate for that extra injury. We as a court cannot gainsay that. Even though we might believe it a "piling on" of fees, the right to exercise its judgment lies with the Legislature. To hold otherwise would deprive that branch of our government of its independence.
"This restriction upon the judicial function, in passing on the con-constitutionality of statutes, is not artificial or irrational. A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for *Page 109 its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function." Carmichael v. Southern Coal Coke Co.,301 U.S. 495, 57 S. Ct. 868, 872, 81 L. Ed. 1245, 109 A.L.R. 1327.
But when we come to paragraph (c) of section 133, we find that the plan of graduating fees according to the propensity of the vehicle to injure the highways — the plan adopted by the legislature, not by us — falls down. In this paragraph a distinction is made upon a basis of the fuel used in the engines of the vehicles. We have here an obvious 11 departure from any thought of wear and tear upon the road; a classification which bears no relationship to the object of the legislation.
Obviously, there is a distinction between a gasoline driven engine and one driven by other fuel, such as Diesel fuel, and for the purposes of raising revenue, such a distinction may possibly be legitimate. We do not say that the Legislature may not, in order to equalize taxes as between gasoline and other fuel, pass a revenue measure to that effect, assuming of course, that our so-called gasoline tax is a tax upon that commodity and not upon the privilege of selling it, as we previously held.
We do not think the Legislature had any such thought in mind in this case. As some evidence of this, and that no such revenue measure was intended by paragraph (c) of section 133, we invite attention to the fact that the fees received from paragraph (c) are specifically set aside for the expense of issuing certificates of title, administering the antitheft 12 provisions of the act, — expenses of regulation. See the last paragraph of section 150, Chapter 46, Laws of Utah 1935, quoted above. We also invite attention to the title of Chapter 46, Laws of Utah 1935, which reads as follows:
"An Act Relating to Motor Vehicles, Trailers and Semitrailers, the Ownership Thereof and Other Interest Therein; and to Provide for the Registration Thereof and the Issuance of Certificates of Title *Page 110 Therefor Upon Payment of Certain Fees; and to License Persons in the Business of Wrecking Such Vehicles or Dealing in Such Vehicles or Parts Thereof; and to Protect Owners of Such Vehicles Against Theft, Embezzlement or Other Loss Thereof; and Providing for the Administration and Enforcement of Motor Vehicle Laws by a Department of Motor Vehicles; and Imposing Penalties for Violations of This Act; and to Make Uniform the Law Relating to the Subject Matter of This Act; and Repealing Chapters, 1, 2, 3, 5, 6, 9 and 11, Title 57, Revised Statutes of Utah, 1933; and Chapters 43 and 44, Laws of Utah, 1933, and All Other Acts or Parts of Acts in Conflict With the Provisions of This Act."
In that title we find nothing indicative of a revenue measure to equalize a gasoline tax, nor any subject matter to which such an equalization is germaine. Thus to hold that paragraph (c) was intended as such an equalizing revenue measure, is to run it afoul of Section 23, Article VI, of the Constitution of the State of Utah which provides:
"Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."
In closing may we say: We have no fault to find with the rule that requires us to uphold a classification if any reasonable ground for doing so exists. In the present case, we have to look no further than the plan of licensing adopted by the Legislature to see the unreasonableness of the classification of paragraph (c).
We are convinced that paragraph (c) is an unreasonable discrimination and so hold. Under such a holding, plaintiff's complaint stated a cause of action and should not have been dismissed after ruling on demurrer.
The judgment of the lower court is set aside and the case remanded for further proceedings in conformity herewith.
MOFFAT, C.J., and LARSON, J., concur.